19 F.

3d 110

Nicholas KONTAKIS
v.
Howard L. BEYER; Attorney General of the State of New
Jersey, Robert J. Del Tufo.
Howard L. Beyer, and Robert J. Del Tufo, Appellants.
Nicholas KONTAKIS, Appellant,
v.
Howard L. BEYER; Attorney General of the State of New
Jersey, Robert J. Del Tufo.
Nos. 93-5178, 93-5198.

United States Court of Appeals,

Third Circuit.
Argued Feb. 3, 1994.
Decided March 11, 1994.
Sur Petition for Rehearing April 8, 1994.

John Vincent Saykanic (argued), Clifton, NJ, for Nicholas Kontakis.

Robert J. Del Tufo, Attorney General of New Jersey, Linda K. Danielson
(argued), Deputy Attorney General, Trenton, NJ, for Howard L. Beyer
and Robert J. Del Tufo.
Before: GREENBERG and ROTH, Circuit Judges, and POLLAK, District
Judge.*
OPINION OF THE COURT
GREENBERG, Circuit Judge.

By an order entered on February 16, 1993, as amended by an order entered on

March 8, 1993, the district court granted Nicholas Kontakis' petition for a writ
of habeas corpus, finding that under Humanik v. Beyer, 871 F.2d 432 (3d Cir.),
cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989), the state trial
court's jury instructions in his murder trial were unconstitutional. The district

court, however, rejected the numerous other contentions Kontakis raised to

support his claim for habeas relief. The respondents, the Superintendent of the
New Jersey State Prison and the Attorney General of New Jersey, appeal as
they contend that the jury instructions error was harmless. Kontakis crossappeals, maintaining that he is entitled to relief on certain of his other
contentions. We will reverse the district court's order granting the writ, and will
reject Kontakis' arguments raised in his cross-appeal. Inasmuch as Kontakis
could have advanced the issues specified in his cross-appeal as alternative
grounds to affirm,1 we are considering them as being made in support of the
result reached in the district court. Accordingly, we treat Kontakis solely as the
appellee.
2I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
3

On March 25, 1985, Kontakis killed his estranged wife, Margaret Kontakis. At
about noon that day, they had been arguing near a car on Railroad Avenue in
Franklin Township, Somerset County, New Jersey. Kontakis then shoved his
wife into the car and a struggle ensued. After attempts of bystanders to
intervene failed and a police car arrived, Kontakis fired three fatal shots from
his handgun into his wife's head from close range while she sat in the car.
Several witnesses, including the chief of the Franklin Township Police
Department, observed the shooting. A Somerset County grand jury indicted
Kontakis for purposeful murder in violation of N.J.Stat.Ann. Sec. 2C:11-3(a)(1)
(West 1982), and for knowing murder in violation of N.J.Stat.Ann. Sec. 2C:113(a)(2) (West 1982). Thereafter, Kontakis pled not guilty.

At the ensuing jury trial, Kontakis contended that he did not have the requisite
mental state to act purposely or knowingly when he killed his wife. A
psychiatrist he called as a witness, Dr. Irwin Perr, testified that at the time of
the murder Kontakis suffered from an adjustment disorder and an "atypical
personality disorder with features of both narcissistic and paranoid
personalities." But Perr also testified that he could not give an opinion
confidently as to whether Kontakis was acting purposely or knowingly at the
time of the homicide. In rebuttal, the state called Dr. Harry Brunt as a witness,
and he testified that Kontakis suffered from "a borderline personality disorder,"
which did not affect his ability to tell right from wrong or to act "with purpose
or knowledge."

Kontakis called four lay witnesses who testified as to his state of mind
immediately prior to the killing. First, his brother Samuel Kontakis testified that
in January and February 1985, Kontakis threatened suicide and acted
irrationally. Second, Theresa Mary Hartley testified that Kontakis was so

"obsessed" with his marital problems that it even affected his ability to drive a
car. Hartley further testified that Kontakis telephoned her 10 or 11 times each
night about his problems. Third, Mary Retner testified that on the day before
the shooting, Kontakis was "in a very bad state of mind, ... was acting very
irrationally, ... [and] was very suicidal that night." Finally, Kontakis' mother
testified that he threatened to kill himself twice daily in March 1985.
6

The trial judge instructed the jury that when assessing whether the state had
proven each element of the offense beyond a reasonable doubt, it "need not
consider the [mental disease or defect] evidence as to the defendant's state of
mind;"2 if the jury found each element proven beyond a reasonable doubt, it
"must then consider the evidence as to the defendant's state of mind;" if
Kontakis suffered from a mental disease or defect at the time of the murder
negating the proof of his state of mind "he cannot be said to have acted
purposely or knowingly;" and "[i]f there is no preponderance of evidence as to
mental disease or defect, negating state of mind, the defense fails." The trial
court based these jury instructions on N.J.Stat.Ann. Sec. 2C:4-2 (West 1982).3

On October 10, 1985, the jury found Kontakis guilty of purposeful murder. On
December 13, 1985, the trial court denied Kontakis' motion for a new trial, and
sentenced him to life imprisonment with a 30-year parole disqualifier. Kontakis
appealed, but on November 5, 1986, before deciding the appeal, the New
Jersey Superior Court, Appellate Division, granted Kontakis' motion for a
limited remand to allow him to move before the trial court for a new trial based
on newly discovered evidence. On the remand, the trial court denied the motion
for a new trial.

Following the remand, the Appellate Division affirmed Kontakis' conviction on

July 12, 1989, rejecting his argument that he was entitled to relief on the basis
of Humanik which had been decided March 31, 1989. Kontakis next petitioned
the New Jersey Supreme Court for certification, but the court denied the
petition on October 31, 1989. However, Kontakis then successfully moved in
that court for reconsideration and it remanded the case to the Appellate
Division for reconsideration in the light of a "memorandum from the [New
Jersey] Chief Justice in respect to the mental disease or defect defense." This
memorandum gave instructions to the New Jersey courts concerning the
application of the then recently decided Humanik. On the remand, the
Appellate Division on August 30, 1990, reaffirmed Kontakis' conviction,
concluding "that the trial court's jury instructions on [Kontakis'] burden of
proof constituted harmless error" "beyond any reasonable doubt." Kontakis
then again filed a petition for certification which the New Jersey Supreme
Court denied on December 4, 1990.

On August 5, 1991, Kontakis filed a petition for a writ of habeas corpus in the
district court, contending that he was entitled to relief under Humanik as well as
on various other grounds.4 In accordance with its comprehensive memorandum
opinion, the district court granted the writ. The court indicated that Humanik
compelled it "to conclude, reluctantly, that [Kontakis] was denied due process
of law in violation of the Fourteenth Amendment when the trial judge gave a
jury instruction on the law of diminished capacity based upon statutory
language which the Court of Appeals for the Third Circuit has found to be
unconstitutional." The court, however, rejected Kontakis' remaining arguments.
An order granting the writ was entered on February 16, 1993, and it was
amended by an order entered on March 8, 1993. The state officials then
appealed.5 We must answer three questions on this appeal: (1) whether the jury
instructions were constitutionally defective under Humanik; (2) if so, whether
the error was harmless; and (3) assuming we find the jury instruction to be
constitutionally sound or any error therefrom harmless, whether the district
court correctly rejected Kontakis' other arguments.

II. DISCUSSION
A. Scope of Review
10

Our review of the district court's decision is plenary, as its order was not the
product of fact finding following an evidentiary hearing. Zettlemoyer v.
Fulcomer, 923 F.2d 284, 291 n. 5 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct.
280, 116 L.Ed.2d 232 (1991). However, our review of the state criminal
proceedings is limited, for as the Supreme Court recently has emphasized, in
"conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385
(1991) (citations omitted).

B. Whether the jury instructions violated the holding in

11
Humanik
12

We agree with the district court that the jury instructions were constitutionally
erroneous under Humanik. Humanik involved an appeal from the denial of a
petition for a writ of habeas corpus following the petitioner's New Jersey
conviction for purposeful and knowing murder. In Humanik, the petitioner
argued that the New Jersey statute, N.J.Stat.Ann. Sec. 2C:4-2 (West 1982),
pursuant to which the jury instructions on mental disease and defect were
formulated, was unconstitutional. At the trial, the court charged the jury as
follows:

13 connection with the question of the defendant's mental state at the time in
In
question, since the defendant has raised this defense, that is, the defense that he had
a mental disease or defect at the time which prevented him from having the state of
mind the law says he would have to have, that is, a knowing or purposeful mental
state in connection with the killing, he has the burden to prove that he had such
mental defect or disease by a preponderance of the evidence
14

Humanik, 871 F.2d at 435 (emphasis by the court in Humanik ).

15

In Humanik, we recognized that under New Jersey law the mental disease and
defect defense was not an affirmative defense, but was relevant only to show
that the defendant did not possess the requisite intent for committing the
offense. Id. at 438-39 (citing State v. Breakiron, 108 N.J. 591, 532 A.2d 199,
208 (1987)). We then found that the instruction would lead "a rational juror
attempting to attribute some significance to the instruction [to] conclude that
the defendant's evidence [on state of mind] should be considered only if the
juror finds it to be more likely true than not true." Id. at 442. We therefore
concluded that the instruction impermissibly altered the state's burden to prove
beyond a reasonable doubt that the petitioner acted purposefully or knowingly
when he committed the murder.

16

At Kontakis' trial the instructions were similar to those we rejected in

Humanik. The court instructed the jury that when assessing whether the state
had proven each element of the offense beyond a reasonable doubt, it "need not
consider the evidence as to the defendant's state of mind;" if the jury finds each
element proven beyond a reasonable doubt, the jury "must then consider the
evidence as to the defendant's state of mind;" if Kontakis suffered from a
mental disease or defect at the time of the murder, negating the proof of his
state of mind, "he cannot be said to have acted purposely or knowingly;" and "
(i)f there is no preponderance of evidence as to mental disease or defect,
negating state of mind, the defense fails."

17

These instructions unconstitutionally altered the state's burden to prove that

Kontakis acted purposely when killing his wife, in that they could have caused
"a rational juror attempting to attribute some significance to the instruction [to]
... conclude that the defendant's evidence [on state of mind] should be
considered only if the juror finds it to be more likely true than not true."
Humanik, 871 F.2d at 442. The instructions suggested that the jury should have
ignored Kontakis' defense that he did not possess the requisite state of mind
unless "there is ... [a] preponderance of evidence as to mental disease or
defect." Thus, they permitted the jury to ignore Kontakis' mental disease and
defect evidence unless the jury found that evidence more probable than not.

18

Consequently, the instructions failed to allow for the possibility that Kontakis'
mental disease and defect evidence, although not rising to the level of being
more probable than not, created a reasonable doubt as to whether he had the
requisite intent to commit the offense. We find, therefore, that the instructions
unconstitutionally altered the state's burden to prove intent beyond a reasonable
doubt.

C. Whether the jury instructions error was harmless

19
20

The Appellate Division held that the error was harmless beyond a reasonable
doubt, because under State v. Breakiron, 108 N.J. 591, 532 A.2d 199, Perr,
Kontakis' psychiatric witness, should "never have been permitted to testify"
with respect to Kontakis' mental disease or defect.6 Indeed, the Appellate
Division found that "[t]he only possible consequence of the judge's erroneous
admission of [Kontakis'] mental disease or defect evidence and instructing the
jury on the point was to improve unjustifiably [his] chances of securing a
verdict to a reduced charge of homicide."

21

The district court rejected the Appellate Division's finding of harmless error,
indicating:

22 light of the Third Circuit's explicit directive that 'a jury may not be told in this
In
context that the mental disease or defect "evidence must be put aside ... unless it
satisfied the preponderance standard," ' ... the Court cannot adopt the Appellate
Division's conclusion that any error was harmless because petitioner was not entitled
to the instruction. Whether he was entitled to it or not, the Third Circuit has
determined that such an instruction is prejudicial. Moreover, even if the trial judge
actually had made explicit to the jury [that] the premise underpinning the State's
argument--i.e., if the judge had instructed them, 'Ignore the charge on diminished
capacity, because defendant is not entitled to it'--the Third Circuit also has indicated
that '[a] charge that contradicts a constitutionally impermissible instruction does not
cure the problem, ... when there is a reasonable likelihood that a juror may have
understood the charge as conveying an unconstitutional message.' (App. at 21-22)
(emphasis in original; citations omitted).
23

Moreover, the district court ruled that "(g)iven that the jurors were not
instructed that petitioner had failed to satisfy the threshold Breakiron
requirements, the likelihood of misunderstanding is at least as great in this case
as it was in Humanik.

24

Our focus in reviewing the district court's grant of the writ is on whether
Kontakis' conviction violated "the Constitution, laws or treaties of the United

States." See Estelle v. McGuire, --- U.S. at ----, 112 S.Ct. at 480. Therefore
Humanik does not compel or even permit us to grant the writ without
considering whether the error was harmful. A contrary holding would violate
well-settled Supreme Court precedent that "a constitutional error does not
automatically require reversal of a conviction." Arizona v. Fulminante, 499
U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991) (Rehnquist, C.J.,
delivering opinion of the Court on Part II) (citing Chapman v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
25

The Court in Fulminante recognized that, after Chapman, the Court "has
applied harmless error analysis to a wide range of errors and has recognized
that most constitutional errors can be harmless." Fulminante, 499 U.S. at 306,
111 S.Ct. at 1263 (Rehnquist, C.J.). In discussing the possibility that an error
was harmless the Court included a long list of cases involving " 'trial error'-error which occurred during the presentation of the case to the jury." These
cases included opinions considering infirm jury instructions.7 Id. Accordingly,
we hold that Fulminante requires us to make a harmless error analysis when
determining whether habeas relief should be granted on the basis that there had
been unconstitutional jury instructions at a state trial.

26

The Supreme Court now has ruled that in a habeas case, as distinct from a
direct appeal, federal courts should apply the test set forth in Kotteakos v.
United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946),
to determine whether constitutional trial errors are harmless. Brecht v.
Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).
The Kotteakos test provides that the error is not harmless if it "had substantial
and injurious effect or influence in determining the jury's verdict." Id. at ----,
113 S.Ct. at 1722 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253).8
Thus, as the Supreme Court has found that errors in jury instructions fall within
the category of trial errors, we apply the Kotteakos harmless error standard. 9

27

The Supreme Court has provided specific guidance for assessing whether a
constitutional error in a jury instruction was harmless. In Estelle v. McGuire the
Court found that the "only question for us is 'whether the ailing jury instruction
by itself so infected the entire trial that the resulting conviction violates due
process.' " --- U.S. at ----, 112 S.Ct. at 482 (quoting Cupp v. Naughten, 414 U.S.
141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Moreover, Estelle
recognized that "the instruction 'may not be judged in artificial isolation,' but
must be considered in the context of the instructions as a whole and the trial
record." --- U.S. at ----, 112 S.Ct. at 482 (quoting Cupp v. Naughten, 414 U.S.
at 147, 94 S.Ct. at 400-01); see also Rock v. Zimmerman, 959 F.2d 1237, 1247
(3d Cir.) (in banc), cert. denied, --- U.S. ----, 112 S.Ct. 3036, 120 L.Ed.2d 905

(1992).
28

We hold that, under the reasoning of Estelle and Cupp, in our assessment
whether Kontakis' conviction violated the Constitution, laws or treaties of the
United States, we should view the state criminal proceeding as a whole,
including the opinions on the state appeals. See Sumner v. Mata, 449 U.S. 539,
101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Of course, we need not follow a state
court decision construing federal or constitutional law. Nonetheless, we find no
justification for isolating the trial from the balance of the state criminal
proceedings when we determine whether the giving of unconstitutional jury
instructions requires that we grant a habeas remedy.

29

But Kontakis argues that Perr's testimony satisfied Breakiron's admissibility

standards and therefore the Appellate Division erred as a matter of state law
when it found his mental disease and defect evidence inadmissible.
Accordingly, he views the Appellate Division opinion as flawed.10 Kontakis
also argues that he satisfied the Breakiron test by introducing other evidence
admissible under state law to support his contention that his mental state
negated an element of the offense.11 Accordingly, Kontakis contends that the
erroneous instructions allowed the jury to disregard valid evidence supporting
his Humanik argument.

30

The difficulty with Kontakis' contention regarding the admissibility of Perr's

testimony is that it cannot be accommodated to the principle that "federal
habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, --U.S. at ----, 112 S.Ct. at 480 (citations omitted). Indeed, the Supreme Court has
ruled that "the Due Process Clause does not permit the federal courts to engage
in a finely tuned review of the wisdom of state evidentiary rules." Marshall v.
Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646
(1983) (citing Spencer v. Texas, 385 U.S. 554, 564, 87 S.Ct. 648, 653-54, 17
L.Ed.2d 606 (1967)). 12 Therefore, we will not review the Appellate Division's
evidentiary ruling for errors of state law as if we were the New Jersey Supreme
Court.

31

Rather, we limit our review to determining whether, when viewing the state
criminal proceedings as a whole, including the appellate proceedings, Kontakis'
conviction violated his constitutional rights. Therefore, as Kontakis does not
argue that the exclusion of Perr's testimony violated his constitutional rights,
we accept the Appellate Division's opinion and we will exclude that testimony
in our harmless error analysis. The jury, after all, should never have heard the
evidence and thus should not have been permitted to base a verdict on it.
Therefore even though, as the district court noted, the instructions carried "an

unconstitutional message" that did not matter.

32

If there were no other state of mind evidence, this would end our inquiry for, as
the Appellate Division concluded, in these circumstances Kontakis could not
possibly have been harmed by the faulty instructions. The instructions would
have done nothing more than place a burden on Kontakis to establish a defense
not even in issue in the case. But they would not have altered the state's
obligation to prove the elements of the offense beyond a reasonable doubt. In
fact, if Perr's testimony had been stricken at the trial, and the erroneous
instructions nevertheless given, they could have been used by the jury only to
cast doubt on the state's case even though they would have been given in a
vacuum, i.e., given though not justified by the evidence.

33

But this conclusion in itself does not resolve the question of whether the giving
of the unconstitutional jury instructions was harmless error, for we must
address the possibility that the instructions precluded the jury from properly
considering Kontakis' lay evidence concerning his state of mind. We will
assume without deciding that the erroneous instructions could have caused a
reasonable juror to disregard Kontakis' lay evidence on state of mind unless the
juror found the evidence more probable than not. Therefore, as required by
Brecht, we consider whether the jury's possible failure to consider the evidence
had a "substantial and injurious effect or influence in determining the jury's
verdict."

34

Accordingly, we reiterate Kontakis' state of mind evidence. First, his brother

testified that in January and February 1985, Kontakis threatened suicide and
acted irrationally. Second, Hartley testified that Kontakis was "obsessed" with
his marital problems such that he was unable to drive a car and called her 10 or
11 times each night. Third, Retner testified that on the day before the shooting,
Kontakis was "in a very bad state of mind, ... was acting very irrationally, ...
[and] was very suicidal that night." Finally, his mother testified that Kontakis
threatened suicide twice daily in March 1985.

35

While there can be no doubt that the lay evidence demonstrated that Kontakis
was emotionally distraught when he killed his wife, it is clear that the evidence
regarding Kontakis' acting purposely at the time of the shooting was so
overwhelming that even if the jury did not consider Kontakis' lay state of mind
evidence, this omission could not have had a "substantial and injurious effect or
influence in determining the jury's verdict." Indeed, Kontakis' lay evidence did
not tend to negate the evidence that on the day of the shooting he acted
purposely or knowingly. Quite to the contrary, it demonstrated the anger he felt
and supplied evidence of his motive to act purposely in retaliation for what he

believed was his wife's misconduct. In this regard we emphasize that we are
concerned with evidence of Kontakis' mental state insofar as it related to his
ability to act purposely and knowingly rather than in the abstract or for some
other purpose.
36

Of course, the evidence that Kontakis acted purposely and knowingly is

manifest. It demonstrated that: (1) two days before the shooting Kontakis
rented a car so he could follow his wife secretly in a car she would not
recognize; (2) on the day of the shooting, he waited outside Granny's Deli and
the post office for his wife to enter the post office; (3) after she left the post
office he shoved her into an automobile; and (4) after arguing with his wife, he
shot her three times in the head from a close distance. It would be difficult to
produce more compelling evidence that a person committing a homicide acted
purposely and knowingly. Furthermore, Brunt testified that Kontakis' mental
problems did not affect his ability to act with purpose and knowledge and Perr
did not contradict him on this point. Therefore, we reject the district court's
order that Kontakis was entitled to habeas relief on the basis of Humanik.

D. Kontakis' other issues

1. Jury Selection
37

Kontakis contends that the voir dire denied him a fair and impartial jury in
violation of the Sixth Amendment and the due process clause. He objects to the
trial court's use of a written questionnaire that was "to be completed out of the
presence of counsel and the court." Brief at 57.

38

In assessing this argument, we do not review the voir dire for violations of New
Jersey law; rather, our "authority is limited to enforcing the commands of the
United States Constitution." Mu'min v. Virginia, 500 U.S. 415, ---, 111 S.Ct.
1899, 1903, 114 L.Ed.2d 493 (1991). We may grant a writ predicated on a
finding that a fair and impartial jury was denied only if we find that the state
courts committed "manifest error" in rejecting this contention. Rock v.
Zimmerman, 959 F.2d at 1252 n. 8. Here, we find no "manifest error," and
indeed no error at all, in the conclusion reached by the state courts that the voir
dire did not result in an unfair or prejudiced jury. The district court accurately
summarized the reasons why the voir dire passed constitutional muster when it
stated:

39 voir dire transcripts reveal that the trial court patiently questioned potential
The
jurors orally after they completed the written questionnaire. Moreover, petitioner's
attorney had ample opportunity to submit questions to the trial court in order to clear

up any misunderstanding resulting from potential jurors' written answers. Before

swearing in the jury, the court gave petitioner's counsel the opportunity to challenge
its composition [and] petitioner failed to exhaust his peremptory challenges. (App. at
24).
40

Thus, we reject Kontakis' argument that the voir dire violated his constitutional
rights.

2. Passion/provocation manslaughter
41

Kontakis contends that the trial court's refusal to charge the jury on
passion/provocation manslaughter, as provided in N.J.Stat.Ann. Sec. 2C:114(b)(2) (West 1982), violated his constitutional rights under Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).13 That section provides
that a homicide which otherwise would be murder is manslaughter if it "is
committed in the heat of passion resulting from a reasonable provocation." In
Beck, the Supreme Court held that in a capital case the trial court committed
constitutional error when it would not charge on a lesser-included offense for
which the evidence supported a conviction. The Court held that in a capital
case in which a conviction for a lesser-included offense could be justified by
the evidence, the jury should not be given an all-or-nothing choice. Kontakis,
arguing from Beck, contends that the court's refusal to give the
passion/provocation charge wrongfully precluded the jury from convicting him
on that lesser-included offense. In support of this contention, Kontakis points to
evidence that his wife left him, took his child, and committed adultery. He
asserts that these circumstances caused him to act in the heat of passion when
he shot her. The district court found that this evidence did not support a
passion/provocation instruction, and we agree. 14

42

Under New Jersey law, passion/provocation manslaughter has four elements,

one of which is that the provocation must be adequate. State v. Coyle, 119 N.J.
194, 574 A.2d 951, 967 (1990). In some circumstances, adequate provocation
may be shown through a course of ill treatment that the defendant reasonably
believed would continue. See State v. Guido, 40 N.J. 191, 191 A.2d 45, 56
(1963). But in this case, the state courts held that the evidence did not
demonstrate a level of ill treatment sufficient to justify the charge under state
law. We cannot reject this conclusion for there is, after all, no federal
constitutional requirement that a state recognize marital misconduct as
justifying a homicide or lessening the consequences which otherwise would
follow from the homicide. Rather, it may prefer the more civilized approach of
leaving the settlement of these disputes to the matrimonial courts. Nothing in
Beck permits us to grant habeas relief when a state court refuses to charge a

jury that it may convict a defendant for an offense when under state law the
evidence could not justify the conviction.
3. Introduction of Mary McLaughlin's testimony
43
44

Kontakis contends that the trial court's admission of Mary McLaughlin's

testimony violated his Sixth Amendment confrontational clause rights and his
due process right to a fair trial and fundamental fairness. McLaughlin testified
that on February 4, 1982, she saw Margaret Kontakis "banging at another door,
for help." McLaughlin then called out to her to come to McLaughlin's
apartment. McLaughlin testified that when Margaret Kontakis entered the
apartment she was shaking, crying, and frightened, and said that Kontakis had
placed a gun to her forehead that morning. McLaughlin also testified that she
saw Kontakis "looking for somebody," while he was walking quickly around
the building. She testified that it appeared he was carrying something.

45

Kontakis contends that the admission of his wife's statements through

McLaughlin's testimony denied him his Sixth Amendment right to confront
Margaret as a witness. We reject this argument because the Appellate Division
held that the statement properly was admitted under state law under the excited
utterance exception to the hearsay rule. Of course, the Sixth Amendment was
not infringed by this evidence, as the amendment does not preclude admission
of evidence under firmly rooted exceptions to the hearsay rule. See White v.
Illinois, U.S. ----, ---- n. 8, 112 S.Ct. 736, 742 n. 8, 116 L.Ed.2d 848 (1992).

46

Furthermore, for the admission of evidence in a state criminal proceeding to

rise to the level of a constitutional error, the petitioner must show that the "use
of the evidence" caused "fundamental unfairness" in violation of due process.
Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166
(1941). Brecht compels us to apply the Kotteakos harmless error test to
determine whether the unconstitutional admission of evidence in a state
proceeding justifies the granting of relief, inasmuch as a mistaken evidentiary
ruling falls with the trial category of constitutional error. Therefore, even if we
found the admission of McLaughlin's testimony unconstitutional to the extent it
included Margaret's statements, which we do not, we nevertheless would deny
habeas relief unless, in the words of Brecht, the evidence had a "substantial and
injurious effect or influence in determining the jury's verdict."

47

McLaughlin's testimony could not have had such a consequence. The trial
record is replete with eye-witness testimony that Kontakis carefully fired three
bullets into his wife's head. In these circumstances, the evidence that he
threatened her three years earlier was not significant. This was, after all, not a

case in which identity of the killer was in issue so that evidence of earlier
threats was critical in establishing his identity. Therefore we conclude that,
assuming arguendo the admission of McLaughlin's testimony was
unconstitutional, any error therefrom was harmless.
4. Kontakis' remaining arguments
48

Kontakis also objects to the district court's rejection of his arguments that
prosecutorial misconduct and/or the admission of Peter Zielinski's testimony
mandate the granting of the writ. We will reject these arguments without detail,
for we agree with the district court that they are without merit.

III. CONCLUSION
49

For the foregoing reasons, we will reverse the order of February 16, 1993, as
amended by the order of March 8, 1993, and will remand the matter to the
district court for entry of an order denying Kontakis' petition for a writ of
habeas corpus.15

SUR PETITION FOR REHEARING

April 8, 1994
50

Before: SLOVITER, Chief Judge, and BECKER, STAPLETON,

MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, and LEWIS, Circuit Judges, and POLLAK,
District Judge**.

51

The petition for rehearing filed by the appellee, Nicholas Kontakis, in the above
captioned matter having been submitted to the judges who participated in the
decision of this court and to all the other available circuit judges of the court in
regular active service, and no judge who concurred in the decision having asked
for rehearing, and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the petition for
rehearing is denied.

Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

He was not required to cross-appeal, as by raising these issues he is not seeking

to enlarge his rights beyond those granted by the district court's order. See

Lippay v. Christos, 996 F.2d 1490, 1503 (3d Cir.1993)

2

In this portion of the instructions the court stated:

Apart from his general denial of guilt, the Defendant maintains that he's not
guilty of the crime of murder, by reason of mental disease or defect, such that
he did not act purposely and knowingly, at the time of the incident. If you find
that the State has failed to prove, beyond a reasonable doubt, any essential
element of the offense, or defendant's participation in the offense, you must
find [Kontakis] not guilty and you need not consider the evidence as to
defendant's state of mind.
App. at 2052.

At the time of Kontakis' trial, N.J.Stat.Ann. Sec. 2C:4-2 (West 1982) provided
that:
Evidence that the defendant suffered from a mental disease or defect is
admissible whenever it is relevant to prove that the defendant did not have a
state of mind which is an element of the offense. In the absence of such
evidence, it may be presumed that the defendant had no mental disease or
defect which would negate a state of mind which is an element of the offense.
Mental disease or defect is an affirmative defense which must be proven by a
preponderance of the evidence.
The last sentence which this court in Humanik held altered the state's burden of
proof has been deleted by an amendment to the statute. See N.J.Stat.Ann. Sec.
2C:4-2 (West Supp.1993).

Kontakis has exhausted his state court remedies

We have jurisdiction under 28 U.S.C. Sec. 1291 and 28 U.S.C. Sec. 2253

In Breakiron, the New Jersey Supreme Court set out the preliminary conditions
for admission of mental disease and defect evidence, stating as follows:
(1) that the condition [the defendant] purports to establish is relevant to his
ability to have formed the requisite criminal mental state;
(2) that the medical theory underlying the effect of the condition upon the
relevant mental state is generally accepted within the scientific community; and
(3) that the evidence defendant plans to adduce is relevant to show the
existence of the condition.

Breakiron, 532 A.2d at 214.

7

The cases are Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108
L.Ed.2d 725 (1990) (unconstitutionally broad jury instructions); Carella v.
California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (jury
instruction containing an erroneous conclusive presumption); Pope v. Illinois,
481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (jury instruction
misstating an element of the offense); and Rose v. Clark, 478 U.S. 570, 106
S.Ct. 3101, 92 L.Ed.2d 460 (1986) (jury instruction containing an infirm
presumption)

Brecht also acknowledged that "in an unusual case, a deliberate and especially
egregious error of the trial type, or one that is combined with a pattern of
prosecutorial misconduct, might so infect the integrity of the proceeding as to
warrant the grant of habeas relief, even if it did not substantially influence the
jury's verdict." Brecht, --- U.S. at ---- n. 9, 113 S.Ct. at 1722 n. 9. Kontakis does
not argue that his case falls within this exception, so we need not address the
issue

Brecht effectively has overruled the portion of our opinion in Rock v.

Zimmerman, 959 F.2d 1237, 1249 (3d Cir.) (in banc), cert. denied, --- U.S. ----,
112 S.Ct. 3036, 120 L.Ed.2d 905 (1992), that provided for a "beyond a
reasonable doubt" harmless error standard for constitutionally infirm jury
instructions. We applied the Chapman standard in Rock for we quite reasonably
relied on Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432
(1991), which, as the Court acknowledged in Brecht, was a habeas case in
which that standard was applied. Brecht, of course, is of great significance
because it flatly rejected use of the Chapman test in federal habeas cases
involving trial-type error. Under Chapman relief must be granted if there was a
federal constitutional error unless the error was harmless beyond a reasonable
doubt. This rejection of the Chapman standard and the adoption of the
Kotteakos test is certain to change the outcome in some habeas cases. In
fairness to the district court, we point out that the Court decided Brecht after
the district court granted the writ in this case. Accordingly, the district court
understandably believed that it was required to conclude from the instructions
themselves that they were prejudicial

10

But Kontakis does not argue that the exclusion of Perr's testimony by the
Appellate Division, as distinguished from the trial court's jury instructions,
violated his due process rights

11

Kontakis points to this evidence as showing that the Appellate Division

wrongly concluded that Kontakis failed to satisfy the Breakiron standards.

Kontakis does not contend specifically that, because the jury instruction
precluded the jury from properly weighing this lay evidence, the instruction
violated his constitutional rights. We, however, believe that to resolve this
appeal, we must address this issue
12

Moreover, we have found that "it is well established that a state court's
misapplication of its own law does not generally raise a constitutional claim."
Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir.) (in banc), cert. denied, --U.S. ----, 113 S.Ct. 472, 121 L.Ed.2d 379 (1992) (citing Zettlemoyer v.
Fulcomer, 923 F.2d at 309)

13

The court charged on purposeful murder, knowing murder, aggravated

manslaughter, and reckless manslaughter. In accordance with the court's
instructions, the jury first considered the charge of purposeful murder and,
having convicted Kontakis on that charge, it did not return a verdict on the
other three offenses

14

The appellants argue that the validity of Vujosevic v. Rafferty, 844 F.2d 1023
(3d Cir.1988), which applied Beck in a non-capital case, is in doubt, citing
Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), and
Geschwendt v. Ryan, 967 F.2d at 884 n. 13. Accordingly, the appellants would
limit Beck to capital cases. In view of our disposition of the Beck issue, we do
not address this contention

15

The court notes that the district court appointed John Vincent Saykanic, a
member of the New Jersey bar, to represent Kontakis in this case and that he
ably has represented Kontakis in both the district court and this court in the
finest traditions of the legal profession

**

Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation